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‘No one above the law’

Director of Public Prosecutions (DPP) Paula Llewellyn has described yesterday’s ruling by a panel of appeal court judges upholding the criminal convictions of entertainer Vybz Kartel and his three co-convicts as “critical and seminal”, given the nature of the legal issues involved, not only locally, but in other Caribbean jurisdictions.

“The Court of Appeal has spoken. This was a very complex matter with several legal issues and I know both the prosecuting team and the defence team would have done extensive research and given very detailed submissions. I believe the Court of Appeal has rendered a judgement which will be a critical and seminal one, given the nature of the legal issues in this jurisdiction and other Caribbean jurisdictions,” Llewellyn told the Jamaica Observer after the mid-morning ruling.

“I am proud of my team, they worked very, very hard and many late nights, and as in any other profession… when you work hard and you get the result that’s always a positive,” the DPP said.

“Every now and again you do have cases that come before the Court that demand the utmost in transparency, and it really puts the justice system on trial because there is a view, somewhat misperceived, that some people are above the law. There is a view that because of [someone’s] station in life or the fact that the person may be very wealthy or the person may be very famous or well known that somehow they are above the law. But every now and again, in the same way like the COVID-19 experience we are having has touched prime ministers, ministers of health worldwide, the famous, the infamous, royalty; in the same way the rule of law, certainly in our jurisdiction, reminds us through cases like this that nobody is above the law,” Llewellyn argued further.

Asked whether she had ever doubted that the prosecution’s case would have fallen down at the point of the appeal she said, “The way that prosecutors examine this matter as opposed to the defence is different. The defence, their main loyalty is to their client. With prosecutors, the integrity of our modus operandi obligates us to act in the public interest. Now, we have a duty to put forward the best material, to ensure that we research the areas of law well and that we need to assist the court in the best possible way. In my view, in what was a very difficult and complex case, this was done and done in the greatest and highest tradition of the precepts that we live by as prosecutors. You expect the unexpected, but we always thought we were on the right side of the law in respect of the legal issues based on, not hype or speculation, but we did the hard work in terms of the preparation of the matter.”

Asked to comment on indications by defence lawyers that they would be taking the judgement to the Privy Council in London, Llewellyn said “That is their right. The wonderful thing about our jurisdictional process is that there are rights that defenders have and the rule of law allows them to exercise those rights as far as the process allows them to, and if that is what they have indicated, then it is their right as it is our responsibility on this side to meet all the arguments the defence will bring at any level of the process.”

As to whether the prosecution would be ready if and when that move is made, she stated, “When the matter was tried, we were ready; when the matter was taken to the Court of Appeal, they filed their grounds of appeal, we did our research, we were ready; and I believe that if it is taken elsewhere and the appeal is filed we would also have to be ready there as well.”

Assessing the likelihood of the men’s sentences being lessened, the DPP said, “In the sentencing process, which is one of the most difficult areas that a judge has to deal with, it is a common part of the process where at the end of the day you are given credit for time already served. So, as a matter of record, the learned judges of appeal have asked the defence counsel in the matter for Mr Palmer and company to submit as a matter of record how much time has been spent incarcerated. So I would think that would be counted against the sentence that was upheld and they will make, I assume, the necessary adjustments if they believe, in the circumstances, it is the most appropriate thing to do.”

In the meantime, the DPP had high praises for the work of the prosecutorial team at the time led by Deputy Director of Public Prosecutions Jeremy Taylor, QC and which included Assistant Director of Public Prosecutions Orett Brown; then Deputy Director of the Cyber Crimes Unit in the Office of the DPP and Crown Counsel Syleen O’Gilvie; as well as the police.

“Not only am I proud of the excellence of the work that was done by my team, but also the excellence of the investigation by the Jamaica Constabulary Force, the excellence and the high quality of the work that was done by the experts who gave support when it came to the digital material, and I believe it is a good day that this work — in terms of the experts within the Jamaica Constabulary — was tested and it stood up to very robust cross-examination by defence counsel at the trial, and it also stood up and was very transparent in the Court of Appeal,” she said.

“So I think in terms of the capacity of the Jamaica Constabulary Force, and they have to be commended, their investigation and the quality of the expert evidence that was given by the constabulary in this matter has also to be commended,” the DPP beamed.

“What I am especially proud of is that when you look at other DPP offices they will retain external counsel to prosecute these very high-profile matters. The DPP’s office in Jamaica is perhaps the only office that consistently prosecutes and has conduct of all our high-profile, complex matters, which is not something that is done in most other Caribbean countries; that is how you are able to enhance our experience,” she added.

“We have no vested interest, we don’t get a dollar extra on our salaries, it is all professional pride, which is part and parcel of what is expected as a career prosecuting attorney. So the burden is very, very heavy, but our backs continue to be broad,” Llellewyn said.

President of the Court of Appeal, Justice Dennis Morrison, in handing down the judgement yesterday said the appeals on behalf of the entertainer and his three co-convicts — Shawn Campbell, Kahira Jones, and Andre St John — filed in 2018 “are all dismissed and the convictions are all confirmed”.

Kartel, given name Adidja Palmer, was sentenced to life behind bars by Justice Lenox Campbell on April 3, 2014, following his conviction for the murder of Clive “Lizard” Williams. The judge at the time said he would be eligible for parole after serving 35 years. His co-convicts were also given mandatory life sentences and have been ordered to each serve 25 years before becoming eligible for parole. Lawyers for the men in the appeal argued that the sentences were excessive and also questioned the integrity and admissibility of the evidence in the case as well as the conduct of the trial judge among other things.

Yesterday, Justice Morrison said the decision in respect of sentence is further reserved, pending the receipt from counsel, within seven days, of a brief note concerning the time spent on remand by each of the appellants, prior to being sentenced. Justice Morrison, who appeared with Justice Patrick Brooks and Justice Frank Williams yesterday, said the court will render its decision on sentencing in writing within 14 days receipt of that note.

And in the 235 pages-long ruling the judges said having considered the relevant authorities, as well as the arguments put forward on behalf of the appellants “our conclusion is that, save in one respect, the sentences imposed by the judge in this case cannot be said to have been excessive to such an extent as to call for this court’s intervention”.

“It is true that the judge did not, as he ought to have done, demonstrate in his sentencing remarks that he took all relevant matters into account. But we are quite satisfied that, on the facts found by the jury to have been proven in this case, the sentences fell comfortably within the range of sentences for murder established by the previous cases. In our view, the aggravating factors identified by the judge in his sentencing remarks — the planning, the premeditation, the elevated amount of mental stress caused and threats made to the deceased, the concealment of the body and the attempts to destroy the evidence — far outweigh the mitigating factors upon which the appellants rely,” the judges held.

However, in noting that it appeared Justice Campbell “may have erred in not giving any consideration to the question of any time spent by the appellants in custody pending trial”, the judges said “it is quite likely that this situation arose because of the failure of defence counsel at trial to bring this aspect of the matter to the judge’s attention”.

“Having reviewed what we were told on this issue during the hearing of the appeals, it now seems to us that the best course to take at this stage is to defer our decision on the appeals against sentence; request a brief note from counsel for the appellants as to the precise period of time spent in custody by each of them pending trial; and render our decision on sentencing in writing within 14 days of receipt of that note,” the judges ruled.

In the meantime, the judges said Kartel’s “appeal has covered a wide range of issues, some of which are unusual, even novel, to this court.

“In arriving at the decision that the appeals against both the convictions and the sentences must be dismissed, this court has decided that the technology exhibits, in particular; the cellular telephone taken from Mr Palmer containing the various text messages, BlackBerry messages, photographs and the video; the compact disc prepared by Digicel showing the telephone contact between the various relevant persons; and the analysis of the technology experts in respect of the contents of the available data were properly admitted into evidence for the consideration of the jury,” the judges found.

Furthermore they said, “The judge properly handled the challenging issues involving the jury; the judge’s directions to the jury in respect of all matters, although containing some minor missteps, were fair and in accordance with the guidance of the previously decided authorities; the publicity which was associated with the case, mainly because of the prominence of some of the appellants, did not prevent them from having a fair trial, as the judge properly and adequately reminded the jury of its duty to make its decision solely on the evidence before it.”

In addition the panel said “despite the failure of the judge to follow the now well-established procedure involving sentencing, the sentences that he imposed are consistent with sentences handed down in previous cases, but the appellants are each entitled to the benefit of a deduction of the time that they spent in custody prior to sentencing”.

They also noted that “despite the absence of a body, the prosecution’s case, consisting of testimony and the technology evidence, revealed an orchestrated plan to take Williams to the place where he met his demise”.

“This court appreciates the sacrifice that the judge, jury, counsel, and court staff of the Supreme Court made in taking what was clearly a difficult trial to completion. We are grateful to counsel who appeared in this court for their assistance in marshalling the mass of material that the trial generated. We apologise for the length of time it has taken to produce this judgement, and also for its unavoidable length,” the judges noted further in the anticipated ruling.

Yesterday, there was no sign of the usually vocal supporters of the incarcerated artiste on the scant streets in downtown Kingston outside the court building on King Street. There was no sign of people congregating before nor after the judgement was handed down.

One man strolling past the court, however, shared his disappointment without breaking his stride; “No release fi di general? Mi feel bad, di general muss go a road,” he commented.